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Friday, Feb. 16, 2001

This is the time in a new administration, during those first few weeks after the new president has been inaugurated, when a list is being prepared with the names of men and women who might be appropriate selections for the Supreme Court. A president never knows when a vacancy might occur. President George W. Bush has good reason to believe that age or ill health may require him to fill at least one, and possibly up to four, vacancies. So surely his aides are preparing for such a situation.

When considering possible Justice appointments, Presidents Ford, Carter (who never got to fill a High Court vacancy), Reagan, father Bush, and Clinton all searched the nation’s courthouses for sitting judges. But the new Bush administration should also think seriously about the talent pool just down Pennsylvania Avenue on Capitol Hill. Historically, Congress was once a prime source for Supreme Court candidates. But for three decades now, it has been overlooked.

The Relationship Between the Nixon and Rehnquist Courts

From the founding of our nation until the Nixon presidency, the Supreme Court always had among its members a former member of either the Congress or the Continental Congress. Since 1971, however, with the retirement of Justice Hugo Black, there has been no justice with Congressional experience. Yet there is no denying that the Court, the Congress, and the American people have benefited greatly in the past from members of our nation’s highest tribunal’s legislative experience.

When Justice Black — who had been appointed in 1937 by President Franklin Roosevelt — retired in 1971, President Nixon had every intention of replacing him with another Member of Congress. He was unable to do so — and that is one of the reasons I have spent the last month digging through old records of the Nixon Presidency in the National Archives.

For the past several weeks, I have been living in a time warp. My head and hands have been exploring the White House papers — and audiotapes — of the Nixon Presidency, in order to trace the roots of our current Rehnquist Court.

Our most recent Presidential campaign, too, was marked by Nixonian rhetoric — with candidate Bush’s call for the appointment of "strict constructionist" justices an echo of Nixon’s 1968 campaign chant. Thus, the George W. Bush Court may well be the practical — and political — equivalent of a Part III of the Nixon Court.

Breaking From the Tradition of Appointing Former Legislators as Justices

As President, Richard Nixon had a unique understanding of the Supreme Court. As an attorney he had twice argued before the Court. As a student of the Court, he wanted to fill Hugo Black’s seat with another former legislator. Black had once represented Alabama (for eleven years) in the United States Senate; Nixon wanted to replace him by appointing Virginia Congressman Richard Poff. While the appointment never worked out, its history is still instructive because it provides insight into Nixon’s view of the Court — a view that still influences the Court we have today.

A September 23, 1971 letter to Nixon in support of Poff, written by another former Virginia Congressman, John O. Marsh, notes that "[s]ince the founding of the Court, over thirty Justices have had previous service in the Congress. In fact, … there has never been a year in our history when the Court was without a former member of either the Congress or the Continental Congress." Marsh attached to the letter a list (prepared by the Library of Congress) of all the Supreme Court justices who were former Members of Congress, as of 1971. (Marsh also noted that there had not been a member of the House, rather than the Senate, to go directly to the Court since 1835, when James Moore Wayne of Georgia was appointed.)

As of today, a total 108 men and women have served on the Supreme Court. Yet that list has not changed since 1971; not a single legislator, from either the House or the Senate, has since served on the Court.

That fact is particularly lamentable given that several of the Court’s greats came from Congress: John Jay, John Rutledge, John Marshall (author of Marbury v. Madison and early architect of the Court’s power), Joseph Story (author of Commentaries on the Constitution that still influence the Court), and Hugo Black, to mention but a few.

The Benefits of Appointing Former Legislators as Justices

Our system has worked best when each branch of government has been able to hold its own against the other branches; that is the genius of the checks and balances our founders provided. The fact that many have served in more than one branch has only strengthened the system, because when an individual moves from branch to branch, he or she takes knowledge and experiences along.

As Marsh emphasized in his letter to Nixon, the highest Court needs the insights of persons who have served in the Congress to assist it in interpreting the actions of the legislative branch. Never has that been more true than today, in an era when the Supreme Court has increasingly, on occasion, taken hefty whacks at Congressional powers. The Court could only benefit from hearing the point of view of those who work across the street in the Capitol Building — in confidence and without bias, from one of the Court’s own members.

It has now been three decades since a Member of the House or Senate has served on the Court. There are an abundance of lawyers and "strict constructionist" in the present Congress. These facts, and the analysis above, counsel strongly in favor of the new president’s aides’ placing one or more legislators on the list of potential High Court appointees. Should the president actually appoint a nominee with Congressional experience, he might not only make political hay, but also actually benefit the workings of government in the process.

John W. Dean, a FindLaw columnist, is a former counsel to the President.

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